COVID-19 and housing disrepair claims

Thursday 3 June 2021

If landlords have not yet reverted to their full repairs programme, I would strongly recommend steps are taken to do so urgently. 

The first national lockdown announced in March 2020 meant we all rapidly adapted to new ways of working. For me personally, I had to get to grips with a new hybrid role of full-time lawyer and full-time mummy.

I was grateful for the initial reduction in workload due to new emergency rules allowing parties to agree longer extensions on court directions. The adjournment of trials and a limitation amnesty meant a noticeable reduction in new court proceedings.

This was only a temporary lull. There followed a rapid increase in housing conditions claims, which has continued throughout the pandemic. 

Practical difficulties faced by registered providers of social housing have affected their ability to perform repairs. It is clear to me that a landlord’s failure to carry out repairs in the last 12 months is certainly a factor in the current increase in disrepair claims.

It would also assist in future defences if a documented chronology of a landlord’s reaction to the lockdowns is prepared to explain any delays in repairs. As always, accurate repairs’ and complaints’ records are key to defending claims successfully.

COVID-19 - landlord response

Pre-pandemic, most registered providers of social housing operated a system where repairs were prioritised by urgency. There had to be a distinction between a significant leak through a ceiling, and a dripping tap.

The landlord’s requirement is to carry out all repairs within a ‘reasonable’ time. It is important to remember the pandemic has not altered a landlord’s repairing obligation. It has simply brought new complexities. 

Landlords cannot put employees at risk, so systems of work, social distancing, risk assessing properties and a reduced workforce due to staff shielding or self-isolating, are all factors in speed of repairs. 

The response of many landlords, understandably, was simply to cease all but emergency repairs. However, it is unlikely the courts will accept the pandemic as a blanket defence for not undertaking non-emergency repairs.

In the initial period of lockdown, focusing on emergency repairs was perhaps acceptable and consistent with the guidance provided by the Ministry of Housing, Communities & Local Government. However, it soon became apparent that COVID-19 was not going away, and landlord responsibilities haven’t either.

The courts give consideration to the impact of a reported defect on a tenant’s ability to live safely - including their mental wellbeing - and every effort should be made to attend to that repair.

It remains to be seen whether complaints of damp for example, during the pandemic, should have been considered urgent in these circumstances. This may impact on compensation. 

Claimant firms

Another factor is claimant firms looking for an alternative source of income.  The number of injury claims have fallen in the last 12 months and these firms need to plug the gap. Housing conditions’ claims are not subject to the same fixed fee costs regime as personal injury claims, so this increase in disrepair claims was perhaps inevitable.

There are also indicators of aggressive marketing campaigns by claimant firms. It is not uncommon to receive multiple claims for the same street, indicative of a door knocking or flyer campaign.

Homes (Fitness for Human Habitation) Act 2018

Another factor to consider is the impact of the Homes (Fitness for Human Habitation) Act 2018. On 20 March 2020, just days prior to the first lockdown, the Act was extended to apply to existing tenancies in England.  This legislation made it easier for tenants to take legal action against landlords for an even wider range of disrepair. 

The Act had come into force a year earlier, applying to new tenancies at that time. The Act added hazards listed in the Government’s housing health and safety rating system (HHSRS) to requirements set out in the Landlord and Tenant Act 1985. Tenants are now able to legally compel their landlord to fix any of the 29 HHSRS hazards, which range from fire safety issues to damp and mould, or poor natural lighting and ventilation.  

Some would argue that the Act has not significantly altered the position beyond the existing Decent Homes Standard and health and safety obligations. My own observation is that there is certainly an increase in the range of defects now being raised by claimant firms.

This is reflective of the fact that previously under the Landlord and Tenant Act 1985, landlords were only liable for repairing items in disrepair. For instance, a landlord would not have previously been obliged to repair inadequate ventilation if it was not in disrepair. 

However, such scenarios may now be captured under the Homes (Fitness for Human Habitation) Act 2018. The obligation is for the landlord to put and keep the property in a fit state for human habitation. 

What is exactly meant by ‘fit for human habitation’ is not defined in the Act, but it does include a requirement for repair, stability, freedom from damp, internal arrangement, natural lighting, ventilation, water supply, drainage, and sanitary conveniences. Claimant firms are trying their best to widen the applicability of the Act

The increase in housing conditions claims is likely due to a combination of reasons, creating a perfect storm for social landlords. They need to act now to ensure all repairs and records are up to date.

Sarah Davisworth (sarah.davisworth@forbessolicitors.co.uk) is a Senior Associate within the insurance department of Forbes Solicitors. She specialises in defending personal injury claims and housing condition claims, and works for a variety of local authority and housing association clients.

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